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Gross v. State3/25/2003
l trial of the cause - that term being understood to include the exhaustion of available rights of direct appellate review of alleged trial court errors - may not be litigated in a post-conviction relief proceeding. Smith v. State, 434 So. 2d 212, 215 (Miss. 1983). It is also a fundamental concept of criminal procedure that the entry of an informed plea of guilty acts as a waiver of the right to subsequently complain of alleged violations of any number of rights arising under the constitution, including those found under the Fourth Amendment. King v. State, 738 So. 2d 240, 240 ( 5) (Miss.1999); McMillian v. State, 774 So. 2d 454, 458 ( 11) (Miss. Ct. App. 2000).
. In this case, the trial court declined to suppress evidence relating to Gross's blood alcohol content derived from a blood sample alleged to have been taken without a warrant and without Gross's informed consent. Rather than explore whether probable cause existed for a warrantless extraction of the blood sample or whether Gross's acquiescence (which the defense conceded but maintained was not informed consent) rendered the test results admissible, the trial court relied on Section 63-11-8 to deny Gross's suppression motion. It was at that point that Gross made the decision that it would be in his best interest to enter a plea of guilty rather than face a trial that would have included evidence of the incriminating results of his blood tests.
. It is plain that Gross had the same right as did McDuff to continue to protest the admissibility of his blood test results on constitutional grounds even after the trial court's ruling against him. It is also evident that his decision to forego this continued challenge (which hindsight and McDuff's later persistence now reveal seemed destined for success) and enter a plea of guilty acted as a waiver of his right to subsequently re-litigate the issue of the admissibility of this evidence in a post-conviction relief proceeding.
. Neither is Gross's quest for relief aided by considerations of whether McDuff ought to be given retroactive or merely prospective application. There is a presumption that supreme court decisions in matters such as this are to be given retroactive effect. Kolberg v. State, 704 So. 2d 1307, 1316 ( 40) (Miss. 1997). However, the term "retroactive" in that context means only that the decision altering the law applies to all cases that are still pending in an active status, either at the trial level, or on direct appeal. Thompson v. City of Vicksburg, 813 So. 2d 717, 721 ( 15) (Miss. 2002). In suggesting that such issues are not the proper subject for post-conviction relief, the Mississippi Supreme Court had this to say:
These notions of finality dictate a similar rule in Mississippi post-conviction proceedings with respect to constitutional claims which were unrecognized at the time of an accused's trial. Such unrecognized constitutional claims will be allowed as grounds for overcoming the procedural bars which we have strictly applied . . . only upon a clear showing that such claims could not have been raised at trial and on appeal. Such a rule is consistent both with the United States Supreme Court holding in Engle v. Isaac and our own longstanding rule that post-conviction relief in Mississippi does not lie for facts and issues which could or should have been litigated at trial. Smith v. State, 434 So. 2d 212, 215 n.216 (Miss. 1983) (citation omitted).
. As an alternative argument, Gross points out that the blood sample was drawn at the direction of a Mississippi law enforcement officer at a time when Gross was in a Tennessee medical facility. He suggests that evidence of the test results was improperly admitted on the basi
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